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DECISION No

DECISION No. 211/1998/QD-TTg OF OCTOBER 31, 1998 PROMULGATING THE REGULATION ON FOREIGN SPECIALISTS IMPLEMENTING ODA PROGRAMS AND/OR PROJECTS IN VIETNAM

THE PRIME MINISTER

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the current tax laws and tax ordinances;

Pursuant to October 17, 1989 Ordinance on the Signing and Implementation of International Agreements by the State of the Socialist Republic of Vietnam;

Pursuant to August 23, 1993 Ordinance on the Privileges and Immunities Reserved for Foreign Diplomatic Missions, Consulates and Representative Offices of International Organizations in Vietnam;

Pursuant to Decree No. 87-CP of August 5, 1997 of the Government promulgating the Regulation on the Management and Use of Official Development Aid;

To unify the management and preference regimes, ensuring the full rights and responsibilities of foreign specialists implementing ODA programs and/or projects in Vietnam;

At the proposals of the Minister of Planning and Investment, the Minister for Foreign Affairs, the Minister of Finance and the General Director of the General Department of Customs of Vietnam,

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on foreign specialists implementing ODA programs and/or projects in Vietnam (referred to as Regulation on foreign specialists for short).

Article 2.- This Decision takes effect 15 days after its signing. To annul all the earlier provisions which are contrary to the provisions of the Regulation promulgated together with this Decision.

Article 3.- The Ministry of Planning and Investment shall have to assume the prime responsibility and coordinate with the concerned ministries and branches in guiding and inspecting the implementation of the Regulation on foreign specialists issued together with this Decision.

Article 4.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People's Committees of the provinces and centrally-run cities and the relevant subjects shall have to implement this Decision.

Prime Minister

PHAN VAN KHAI

REGULATION ON FOREIGN SPECIALISTS

(Issued together with Decision No. 211/1998/QD-TTg of October 31, 1998 of the Prime Minister)

Chapter I

GENERAL PROVISIONS

Article 1.- Objects and scope of application

1. This Regulation shall apply to foreign specialists who are allowed to enter Vietnam for the implementation of ODA programs and/or projects and their dependents.

2. The Regulation on foreign specialists shall cover ODA-funded programs and projects, including:

a/ ODA programs and/or projects with financial supports from foreign governments;

b/ ODA programs and/or projects with financial supports from international and regional organizations outside the United Nations (UN) system;

c/ ODA programs and/or projects with financial supports from inter-governmental organizations;

d/ ODA programs and/or projects with financial supports from organizations in the UN system;

e/ ODA programs and/or projects co-financed by foreign parties.

3. Other objects, including diplomats shall not be subject to this Regulation.

Article 2.- Foreign specialists and their dependents, regardless of their nationality, when entering Vietnam for the implementation of ODA programs and/or projects, shall:

1. Be treated equally, irrespective of their nationalities

2. Have their lawful property protected during their working term in Vietnam.

Article 3.- Apart from enjoying the interests defined in this Regulation as well as other legitimate rights and interests prescribed by Vietnamese laws, foreign specialists and their dependents shall have to fulfill all their obligations mentioned in this Regulation and in other legal documents of Vietnam.

Article 4.- The competent agencies of the Vietnamese party and foreign party shall have to closely coordinate with each other in managing and employing specialists while ensuring that the legitimate rights, interests and obligations of specialists and their dependents are implemented during the specialists' performance of their assigned tasks in Vietnam.

Article 5.- Interpretation of terms

A number of terms used in this Regulation are construed as follows:

1. ODA programs and/or projects mean activities coordinated and conducted by the foreign party and Vietnamese party using the official development aid (ODA).

2. The foreign party includes foreign governments, international organizations and inter-governmental organizations that finance ODA programs and/or projects in Vietnam.

3. The Vietnamese party includes Vietnam's competent agencies that perform the function of State management, administration and implementation of ODA programs and/or projects in Vietnam.

4. Parties include the Vietnamese party(ies), foreign party(ies) and specialists.

5. Donors mean foreign party(ies) providing aid for ODA programs and/or projects in Vietnam.

6. Foreign specialists implementing ODA programs and/or projects (hereafter referred to as specialists) are foreign nationals who are either sent to Vietnam by the foreign party to study, elaborate, evaluate or implement ODA programs and/or projects according to the provisions or agreements in ODA-related international treaties which have been concluded between the Vietnamese party and the foreign party; or invited or hired by the Vietnamese party into Vietnam for the implementation of ODA programs and/or projects.

7. Dependents mean the wife/husband and minor children of a specialist or persons whom the specialist has to support under Vietnamese laws, provided that they live together in one family household.

8. The ODA programs and/or projects managing agencies (hereafter referred to as the project management agencies) are the ministries, the ministerial-level agencies, the agencies attached to the Government or the People's Committees of the provinces and centrally-run cities, which are assigned by the Government of the Socialist Republic of Vietnam to directly manage ODA programs and/or projects.

9. Agencies implementing ODA programs and/or projects (hereafter referred to as the project implementing agencies) are units in charge of the implementation of programs and/or projects by decisions of the project management agencies.

10. Emergency cases mean such urgent circumstances as natural calamities, wars or disturbances that may threaten the safety of the life and property of specialists and their dependents.

Chapter II

SPECIFIC PROVISIONS

Article 6.- Preferences for specialists

1. Entry/exit visa preferences: Specialists and their dependents shall be granted with priority, the single or multiple Vietnamese entry/exit visas at the proposals of the project implementing agencies. The procedures for entry/exit visa granting shall comply with the current regulations.

Those specialists who stay in Vietnam for 6 months or more shall be considered for the multiple entry/exit visas for their whole working term which must not exceed 3 years (if they so request).

In emergency cases, if the Vietnamese party deems it necessary to ensure security and safety for the life and property of specialists and their dependents, such specialists and their dependents shall enjoy preferential exit procedures as applicable to foreign diplomats working in Vietnam and in conformity with the Ordinance on Entry, Exit, Residence and Traveling by Foreigners in Vietnam, which was adopted by the Council of the State of Vietnam on December 21, 1992.

2. Preferences on foreign exchange: Specialists and their dependents are entitled to bring foreign currency(ies) into Vietnam, covert into foreign currency(ies) and bring out of Vietnam their earnings from wages, contracts on the implementation of programs and/or projects or other income sources as prescribed in Article 7 below. The procedures for bringing foreign currency(ies) shall comply with the stipulations of the State Bank of Vietnam.

3. Registration of residence and traveling: Specialists and their dependents are entitled to travel freely and register their stay on the Vietnamese territory, except for restricted areas.

4. Other preferences:

a/ On the granting and/or exchange of driving licenses and registration of vehicles' number plates: Specialists and their dependents, who are not minors under Vietnamese laws, when entering Vietnam, are entitled to register for driving courses, tests and driving license granting at the civil driver-training schools; and provided with favorable conditions in exchanging their driving licenses and registering their vehicles' number plates as prescribed.

b/ During their stay in Vietnam, the specialists' dependents shall be entitled to enroll at schools reserved exclusively for children of foreigners in Vietnam (if they so wish). The enrollment procedures shall comply with the current regulations.

c/ In cases where a specialist or his/her dependent violates Vietnamese law, is prosecuted, arrested, brought to trial, imprisoned, expelled from Vietnam or held jointly responsible in legal proceedings, the representative(s) of the foreign party that has nominated or hired such specialist and the diplomatic mission of the country where the specialist or his/her dependent is a citizen shall be quickly notified thereof by the Vietnamese party and entitled to visit him/her. The above-said specialist or his/her dependent shall be entitled to invite or employ lawyers appointed by the foreign party; the procedures for the invitation and use of lawyers must conform with international practices and Vietnamese laws.

Article 7.- Immunities for specialists:

1. Exemption of import, export and/or special consumption tax (if any) and registration fee:

a/ Specialists and their dependents are entitled to the duty-free import of personal items and belongings as prescribed in Decree No.17-CP of February 6, 1995 of the Government promulgating the duty-free luggage quotas for passengers on entry or exit through the border-gates of Vietnam (Appendix I).

A specialist who is allowed to stay in Vietnam for 183 days or more shall be entitled to the single duty-free import of household appliances with appropriate quantity and category stated in the list in Appendix II (regardless of the actual number of his/her entries or exits).

b/ A specialist who is allowed to stay in Vietnam for 183 days or more shall be entitled to the temporary duty-free import of and the registration fee exemption for one car of under-12 seats and one motorbike of under-175 cm3 for personal use by him/herself and his/her dependents.

c/ The car and motorbike mentioned in Item 7.1.b shall be either re-exported when the specialist fulfilled his/her tasks and leaves Vietnam together with his/her dependents, or taxed according to the current regulations if they are sold in Vietnam.

d/ In cases where the car or motorbike mentioned in Item 7.1.b is irreparably damaged in accident(s) or lost, not due to the specialist's or his/her dependent's fault as certified by the police, the insurance office at the place where the accident occurred and by the inspection and registration agency of the Vietnamese party, such specialist shall be exempt from import tax and registration fee for another car or motorbike. The damaged car or motorbike may be re-exported or taxed according to the current regulations if it is sold in Vietnam.

e/ If a specialist is allowed to stay in Vietnam for 3 years or more, he/she shall, during the fourth year, be entitled to the temporary duty-free import of another car or motorbike and exempt from registration fee therefor (if he/she has such a demand). The car and/or motorbike which was temporarily imported previously according to preference regime must be either re-exported or taxed in accordance with the current regulations if it is sold in Vietnam.

f/ If a car and/or motorbike mentioned in Items 7.1.c, 7.1.d and 7.1.e is sold to another specialist or dependent who is also subject to this Regulation, or given to other immunity beneficiary prescribed by the current regulations, it shall continue to enjoy the above-stipulated immunities.

2. Income tax exemption: During their working term in Vietnam, specialists and their dependents shall be exempt from income tax on their wages and other incomes earned from the implementation of ODA programs and/or projects in Vietnam.

3. Property lawfully owned by specialists and their dependents in Vietnam shall not be collected, requisitioned or confiscated. The transfer of such property to their home countries as well as the assignment and/or sale thereof on the Vietnamese territory shall comply with the provisions of Vietnamese laws.

4. Other immunities:

During their stay in Vietnam, specialists and their dependents shall be:

a/ Exempt from personal contributions to the public welfare, national defense and security of the State of Vietnam.

b/ Exempt from professional registration and operating license.

Article 8.- Responsibilities of the parties:

1. Responsibility of the Vietnamese party

a/ The project implementing agency(ies):

- To make a list of work that requires specialists; to determine the posts, titles and tasks of specialists for each project and ask the foreign party to provide them.

- To fulfill the Vietnamese party's obligations defined in the international agreements which Vietnam has signed or acceded to.

- To support and ensure the materialization of the legitimate rights, interests and obligations of specialists and their dependents during their stay in Vietnam.

- To coordinate with the project management agency and the foreign party in managing and appraising specialists in the course of implementation of the projects, ensuring the proper fulfillment of the obligations and responsibilities already mentioned in the specialist-hiring contracts.

- To propose handling measures to the project management agency and the foreign party if the work or conducts of specialists and their dependents fail to conform with the agreements or commitments in the specialist-employing contracts or with the international agreements which Vietnam has signed or acceded to.

- To support specialists and coordinate with the project management agency and foreign party in settling cases related to specialists and their dependents during their stay in Vietnam or cases mentioned in Item c, Clause 4 of Article 6 above (if any).

b/ The project management agency:

- To direct the project implementing agency in managing and employing specialist efficiently.

- To certify cases where a specialist assigns or sells his/her movable property that was temporarily imported with priority but has not been re-exported as prescribed in Clause 1 of Article 7 and such specialist has fulfilled the tax obligation under the provisions of Vietnamese law.

- To certify lawful property and incomes of specialists and their dependents in cases where such property and/or incomes are transferred to their home countries or assigned/sold in Vietnam and they have fulfilled the tax obligation (if any) under the provisions of Vietnamese law.

- To coordinate with the Ministry of Planning and Investment and the competent agencies of the Vietnamese party and foreign party in ensuring the materialization of other legitimate rights, interests and obligations of specialists and their dependents during their stay in Vietnam.

- To study proposals made by the project implementing agency as prescribed in Item 8.1.b and coordinate with the foreign party in issuing handling decisions.

- To join the Ministry of Public Security and the Ministry for Foreign Affairs or other functional agencies of the Vietnamese party and foreign dependents in dealing with matters related to specialists and their dependents in emergency cases and other cases mentioned in Clause 1 and Clause 4 of Article 6 above (if any).

c/ The Ministry of Planning and Investment:

- To verify ODA programs and/or projects and specialist-employing activities at the request of the parties concerned.

- To coordinate with the agencies of the Vietnamese party and foreign party in observing the specialist managing and appraising regime in the course of program and/or project implementation.

2. Responsibility of the foreign party:

a/ To select, nominate or hire specialists at the request of the Vietnamese party.

b/ To provide necessary information for the Vietnamese party to evaluate the specialist candidate.

c/ To supply the specialist-employing contract to the Vietnamese party for monitoring and management purposes.

d/ To coordinate with the Vietnamese party in handling cases related to specialists and/or their dependents during their stay in Vietnam or cases mentioned in Clauses 1 and 4 of Article 6 above (if any).

3. Responsibilities of specialists and their dependents:

a/ During their stay or working term in Vietnam, the specialists and their dependents shall have to follow guidance and submit to the management by the Vietnamese competent agencies, respect and observe Vietnamese laws.

b/ To fulfill all obligations stated in the contracts already signed between the parties.

c/ Besides the work or activities already agreed upon or prescribed in documents concluded by the parties, the specialists are not allowed to practice their profession for any profit-making purposes on the Vietnamese territory, except otherwise provided for by international agreements which the Government of the Socialist Republic of Vietnam has signed or acceded to.

Chapter III

HANDLING OF VIOLATIONS

Article 9.- Organizations and/or individuals that commit acts of violating the provisions in this Regulation and other provisions of law shall, depending on the nature and seriousness of their violations, be disciplined, administratively handled or examined for penal liability; and if damage is caused, the compensations must be made in accordance with the provisions of Vietnamese law.

Prime Minister

PHAN VAN KHAI